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In a great decision for victims of dangerous drugs throughout the United States, on March 4, 2009 the Supreme Court upheld a Vermont state court decision awarding 6.7 million to a woman who suffered permanent injuries from an anti-nausea drug. The case involved a Vermont resident who developed gangrene after a botched injection of the drug, which tragically resulted in the amputation of her hand and lower arm. The tragedy was compounded by the fact that the plaintiff was a musician, and lost her livelihood due to her injuries.

The physician’s assistant who performed the injection used a highly risky intravenous push technique, which allowed the drug to enter an artery, rather than the intravenous drip technique, the much safer method in which the drug is injected into liquid already flowing into a vein. Allowing the drug to enter the artery causes immediate and irreversible gangrene. Wyeth’s lawyers requested that the Supreme Court set aside the verdict, attempting to rely on the fact that they had complied with FDA labeling requirements. (In a case last year against medical device manufacturers of heart defibrillators, stents, and artificial hips, the Court had ruled that federal law and FDA scrutiny prevented product liability lawsuits in state courts). However, in a decision written by Justice John Paul Stevens, the elder statesman and most liberal member of the Supreme Court, the justices determined that Wyeth’s warnings were insufficient and should have made abundantly clear the dangers of serious injury if the drug was injected improperly.

The decision to allow state damage suits will undoubtedly cause manufacturers to use greater care in the production and labeling of their products. We would also expect a revisiting of last year’s decision protecting device makers, which seems somewhat inconsistent with the Court’s welcome decision protecting the public this week.

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The tobacco giant Phillip Morris was ordered to pay 8 million dollars this week to Florida widow Elaine Hess, whose late husband Stuart Hess died of lung cancer at age 55 in 1997. A jury in Fort Lauderdale awarded compensatory damages of 3 dollars and a whopping 5 million dollars in punitive damages, obviously convinced that Philip Morris knew that the cigarettes they marketed and sold are a dangerous product but that the company was more concerned about profit than safety.

Philip Morris USA announced that they would appeal the verdict, certainly to be expected after a major verdict against the tobacco giant in the first of what will likely be thousands of cases in Florida. Back in 2006, the Florida Supreme Court threw out a 145 billion dollar jury award in a dangerous product class action suit filed in the early 1990’s on behalf of 8,000 sick smokers. Undoubtedly, the Hess verdict will encourage the families of those 8,000 smokers to pursue their cases as well.

Compensatory damages are awarded for injuries including pain and suffering, lost earnings, loss of enjoyment of life, and medical bills. These type of awards are more likely to be upheld by an appellate court. Conversely, punitive damages, which as the name suggests, are imposed to “punish” the defendant for intentional or malicious conduct, are frequently either reversed or substantially reduced by higher courts on appeal.

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You have been involved in a New York car accident, or a slip and fall accident, or you have been the victim of a defective product in New York. You hire a lawyer, who commences a lawsuit on your behalf when the insurance company won’t make a fair offer to settle your case. Approximately 45 days after your deposition, during which you are asked questions under oath by the defendant’s lawyer about your accident and injuries, you will be required to attend what is commonly known as an “IME.” (Independent Medical Examination). This name is in actuality quite laughable, as there is nothing at all “independent” about the examination. It is scheduled by the insurance company lawyer with an orthopedist, neurologist or other doctor who is known for giving opinions that minimize injuries as slight and not permanent, (or that you can return to work) despite your treating doctor’s opinion otherwise. The insurance company doctor will then give trial testimony as to your supposed miraculous recovery for a fee, usually in the range of $7,500 to $10,000 for a few hours in Court!

At The Law Office Of Mark A. Siesel in White Plains, New York, we take these “IME’s” very seriously, and instruct our clients exactly how to approach them so as to limit any potential damage to their case by the insurance company doctor’s opinion. First, make sure that you have your watch with you, and something to take some notes at the conclusion of the examination. Here are the instructions to our clients:

1. When you are presented pages of an intake form requesting personal information such as your social security number and home address (totally for the doctor’s convenience and with no benefit to you) write your name, age and injuries you suffered, and nothing else, and hand the form back to the receptionist;
2. Remember that this is not your doctor, and that his or her main purpose is to be able to write a report and testify in Court that you are either fully recovered, are not in any way disabled, and can return to work if you are not working. Thus, it is critical that when the doctor requests that you do certain tasks, such as walk on your toes or heels, touch your toes, lift your legs to a 90 degree angle from a sitting position or bend in some awkward way (all for the purpose of testifying that you have “normal range of motion”), YOU MUST STOP THE DOCTOR WHEN WHAT HE OR SHE IS DOING IS HURTING YOU! Take control of the exam in a firm fashion and let the doctor know that you do not want to reinjure your back, neck or other part of your body by the examination;

3. The doctor is entitled to ask you about your injuries, past related injuries, treatment you are undergoing and medications you are taking for your pain. If he or she begins asking questions such as what color the traffic light was, or if you were distracted when the accident happened, politely remind the doctor that he or she is supposed to be doing a medical examination, not cross examining you–that role is for the lawyers.

4. When you walk into the examination room, check your watch, and write the time down. Similarly, when the exam ends, jot down the time that it was completed. This is absolutely critical! The reason? Because these “IME’s ” are generally no more than 10 minutes, maybe 15 at the most. When we have the opportunity to cross examine this very wealthy IME doctor during your trial, imagine his or her surprise when they are confronted with the question: ‘Doctor, how could you possibly have conducted a complete examination of my client when you began the exam at 10:54 AM and she left your office at 11:03? Believe me, these insurance company doctors have no good answer for that question.

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If you are injured in a New York car crash, a Westchester slip and fall accident, a Bronx dog bite, or Brooklyn construction accident, (among numerous other types of accidents) after you have consulted an attorney and started a lawsuit or claim, there is another possible way to resolve your case with the insurance company or defendant. Alternative Dispute Resolution, or ADR, has become a frequently used method of resolving cases.

The two basic types of dispute resolution in New York car crashes or New York slip and fall cases are mediation and arbitration. In a mediation, the two sides agree to an impartial mediator, usually a retired judge, and submit written submissions with their respective positions in the case. At the mediation, the judge listens to a brief statement from each side, then commences negotiating with both parties to try to work out a settlement. The parties are not obligated to agree to the judge’s settlement recommendation, but in my experience, approximately 75% of cases do settle when they go to mediation.

In an arbitration, the big distinction is that unlike a mediation, the judge’s decision is binding on the parties. The arbitration is similar to a mini trial, with parties questioning and cross examining witnesses, and testimony from experts such as treating doctors. Unless the judge makes a substantial error in his determination of the facts and the law, the decision in an arbitration is final. At The Law Office of Mark A. Siesel in White Plains, New York, we prefer mediation to arbitration and encourage our clients to consider mediation to resolve their case. Mediation is much faster than going to trial (often, a case can be mediated within the first year after the accident), much less costly (there is no need to have the treating doctor testify in Court, which in 2009, generally costs between $7,500 to $10,000), and the process is non-adversarial.

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According to a study by the Network of Employers For Traffic Safety, distracted driving is a factor in 25% to 30% of all car accidents, or 4,000 car crashes every day. As hard as it is to believe, drivers make an average of 200 decisions for every mile traveled, making it all the more critical that your attention is on the road, not on that important meeting you are heading to or a cell phone call you need to make in the car. The same study found that distracted drivers fail to recognize potential safety hazards on the road and react more slowly to traffic conditions, decreasing their margin of safety.

To know if you are driving distracted, take the following test: Have you ever slammed on your brakes because you didn’t see the car in front of you stop? Run a stop sign unintentionally? Forgot entirely that you drove from one place to another? If so, you have been “driving while distracted.”

The study identified the percentages of distracting activities that drivers engage in: 96% talk to their passengers; 89% adjust vehicle climate and radio controls; 74% eat a meal or snack; 51% use a cell phone; 41% tend to children; 34% read a map; and 19% groom themselves for work.

It is certainly a given that you will be speaking with your children in the car, but I have seen people shaving, putting on makeup, reading a map, making a cell phone call with no hands on the wheel, adjusting their radio, and turning around to speak with their passengers on many occasions, and have had to avert numerous wayward drivers due to these activities.

The best advice is to eat that snack, make that call, comb your hair and get your directions before getting in the car, so we can all be safer on the roads!

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On December 12, 2008, a jury in a Westchester County medical malpractice case awarded a 7 million dollar verdict to the family of Theresa Capwell, an Orange County mother of three who died on September 10, 2001. Ms. Capwell had been admitted to Westchester Medical Center on September 18, 2000 complaining of abdominal pain. Apparently, although her symptoms indicated that she was suffering from pancreatitis, an inflammation of the pancreas, doctors at the hospital instead ran tests for various types of cancer, and disregarded test results which showed that Ms. Capwell did not have the disease.

When the inflamed pancreas was not treated, Ms. Capwell suffered complications, and was placed on a breathing machine one week after admission to the hospital. The breathing machine caused an accumulation of air around the lungs, which prevented the lungs from expanding and contracting. Had doctors at the hospital used a chest tube to drain the air around the lungs, tragedy could have been averted, but instead, Ms. Capwell was kept attached to the ventilator, and went into cardiac arrest. She had no oxygen for approximately 12 minutes, causing irreversible brain damage, and Ms. Capwell died 11 months later, unable to speak or leave her bed.

Westchester Medical Center vowed to appeal the verdict, which came after a three week trial and one day of deliberations. Ms. Capwell’s three daughters were 7, 9 and 11 when she died back in 2001.

According to the National Institutes of Health, about 210,000 people are admitted to U..S. hospitals annually for treatment of acute pancreatitis. With correct treatment, the condition usually resolves within a few days.

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The United States Supreme Court ruled this past Monday that smokers may sue tobacco companies for fraud in the marketing of “light” cigarettes. In a surprising 5-4 decision considering the conservative, pro-business nature of the Court, the Supreme Court determined that several Maine residents had been deceived by Altria and Philip Morris USA into believing that light cigarettes deliver less tar and nicotine to smokers than regular cigarettes. Although it is true that the light cigarettes do have less tar and nicotine than regular cigarettes, smokers apparently compensate for the difference by taking larger puffs, smoking more cigarettes or inhaling more deeply.

The plaintiffs sued Philip Morris under the Maine Unfair Trade Practices Act, claiming that they had been injured by the deceptive advertising and marketing of cigarettes such as Marlboro Lights. The Supreme Court had to decide whether the plaintiffs had the right to sue at all considering the Federal Cigarette Labeling and Advertising Act, which was enacted in 1965 and required tobacco companies to place warnings on their packaging and advertising. The federal law had prohibited the states from making their own similar laws as to smoking and health based on the United States Constitution’s Supremacy Clause, which states that when there are conflicts between federal and state laws, federal laws must prevail. The majority opinion, written by Justice Anthony Kennedy, determined that the Cigarette Labeling and Advertising Act was intended to prevent states from making their own laws about health problems from smoking, not to pre-empt laws such as Maine’s which establish a general responsibility not to deceive consumers.

Naturally, the four judges in the minority, Scalia, Roberts, Alito and Thomas, sided with big business in claiming that that the Maine statute was essentially an attempt to get around the federal statute, and was instituted only to regulate smoking and health, not the deceptive business practices of Philip Morris. In a major victory for plaintiffs around the country, the decision will allow dozens of similar lawsuits to proceed in other states. Hopefully, the case will also start a trend by which ordinary Americans will be successful in holding corporations accountable for their dangerous practices.

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In New York accident cases, the hospital chart description of how an accident occurred is tremendously important in a successful settlement or jury verdict. What I have seen over the last several years is a carelessness, or in some cases intentional effort by emergency hospital personnel to minimize, downplay, or simply disregard the patient’s description of how she or he was injured, with a serious negative impact on the client’s case. Three examples are instructive. In a Bronx County slip and fall case, our client suffered a severely fractured right arm when she slipped and fell walking down a flight of stairs. The cause of the accident was the lack of a proper handrail, coupled with stairs which did not comply with the New York State Building Code. When the client arrived at the hospital and informed the triage nurse what had happened, the nurse wrote the following: “While walking down the stairs, she missed a step and fell to the bottom of the stairs.” Not only was this inaccurate, but it of course implied that the fault was the patient’s rather than the restaurant’s for failing to have a stairway which met building code requirements. Luckily, in this case, we prevailed, but the case was defended through trial as the defendant’s insurance company relied on the inaccurate description of the accident in the vain hope that a jury would blame our client for the accident.

Similarly, in a Brooklyn slip and fall accident, our client tripped and fell on a missing piece of concrete on an outdoor patio while at a engagement party, and suffered torn ligaments in her knee which required two surgeries to repair. The emergency department’s description of the accident: “Recreational injury.” This is an example of the damage emergency room personnel can cause to a personal injury case if they do not accurately record how the accident actually happened. Insurance claim representatives and defense attorneys rely heavily on the initial description of accidents in hospital charts, and if that description, as in this case, is both inaccurate and negates any responsibility on the defendant’s fault, this has the effect of preventing an early settlement and extending litigation. Once again, we won at trial, but this was a case which never should have reached that stage.

Most recently, in a Westchester County car accident case, (which is presently being litigated), our client suffered a torn rotator cuff when another car went through a stop sign and struck the driver’s side of our client’s car. As our client was taken from the scene by ambulance before the police arrived, the police report does not contain our client’s version of the accident. The emergency room nurse, despite being told by our client that the other driver disregarded a stop sign, wrote: “Patient injured in an intersection accident.” This vague description, without any attribution of fault, again gives the defendant’s insurance company a misplaced belief that the case may be defensible–how difficult would it have been for the nurse to accurately records what our client reported, that she was the victim of a driver who disregarded a stop sign?

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You have decided to have elective surgery, such as breast implants, a nose job, or radial keratotomy. Before the procedure is performed, the surgeon (or more likely his nurse or assistant) will hand you a document which contains a long list of potential complications and risks of the procedure you are about to undergo. The document you are about to sign is called a “consent form.” Before you place your signature on that piece of paper, MAKE SURE YOU READ IT CAREFULLY! What you will find when you read the consent, (for example in the case of the radial keratotomy), is that there is a risk of blindness, a worsening of your eyesight, and death or serious complications from the anesthesia.

Do not hesitate to ask the surgeon any and all questions about the potential risks and dangers of the surgery, and if you feel that your questions have not been fully or satisfactorily answered, walk out of that office without going forward with the surgery. Once you have signed the consent, which will state on the form that you have read it carefully and that all of your questions have been answered, you have now given your “informed consent” to the procedure. What the means is that if a problem develops from the surgery, and that problem was disclosed as a potential risk or complication of the operation, you have most likely waived your opportunity to institute a medical malpractice case as a result of your “informed consent.”

If you have been the victim of medical malpractice, contact The Law Office of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation to discuss your case with an experienced, knowledgeable attorney who will outline your potential legal options.

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According to data from the National Highway Traffic Safety Administration, in which NHTSA reported on motor vehicle deaths from 2001 through 2006, there are five holidays that drivers should try to steer clear of, if at all possible. The fifth most dangerous holiday is New Year’s Day, (which surprised this writer–I would have thought it would be the most dangerous with the amount of alcohol consumed and volume of drivers on the roadways) with an average of 421 vehicular deaths. The fourth most dangerous holiday is Labor Day weekend, especially as a result of overcrowded roads and out of town travel. There was an average of 488 deaths for the 6 year period of the study. Number 3, with an average of 493 deaths, is Memorial Day Weekend, with coastal roads overcrowded with 38 million people on the roads, according to AAA statistics.

The second most lethal holiday for drivers is Independence Day, with average motorist deaths at 505. It is estimated that 53% of July 4th crashes involve at least one drunk driver. The most dangerous holiday of all? That would be Thanksgiving, with too much wine at dinner, perhaps, and possibly extra exhaustion from an over indulgence in rich foods–this holiday averaged 573 vehicular deaths over the last 6 years, and in 2006, there were 623 traffic fatalities. So please be extra careful this Thanksgiving!

If you, a family member or relative are injured in a car accident or any other type of accident, contact The Law Office Of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation with an experienced, aggressive attorney who will fight to get you the maximum compensation for your pain and suffering, lost earnings and loss of quality of life.